fwd: Trial By Nationality? - US persecute al-qa'eda suspects

paul illich paul_illich at hotmail.com
Wed Aug 13 15:23:29 MDT 2003



What's Good For The Goose...
Trial By Nationality?

by Nyier Abdou

Nyier Abdou looks at accusations that the US is dispensing justice to
Al-Qa'eda suspects by fiat.

Concessions won by British and Australian negotiators last week regarding
their nationals detained as Al-Qa'eda suspects have sparked further
controversy in the ongoing dispute over US military commissions. Since it
was announced in November 2001 that the US would set up military commissions
to try foreign terrorism suspects, human rights advocates have decried the
proposed trials as substandard justice.

Whether it was the force of the considerable international outcry concerning
the nebulous legal status of Al-Qa'eda suspects detained at the US naval
base in Guantanamo Bay, Cuba - or whether it simply took this long to wade
through the bureaucratic channels of the US military and intelligence
services - it was not until early this month that the first six prisoners
were named by US President George W Bush under the presidential order that
established the commissions. The so-called Final Rule that adjudicates the
commissions was not issued by the Department of Defence until late June.

Some 680 prisoners from over 40 different countries - the large bulk of them
detained during the US-led war in Afghanistan - are kept at "Camp Delta"
detention facility in Guantanamo. Classified as "illegal combatants" by the
US, the prisoners are being held incommunicado indefinitely. None has seen a
lawyer or family and none has been charged with a crime.

Because defendants can face the death penalty, the highly controversial
commissions have raised particular ire among European Union countries, which
categorically oppose the death penalty. Among the detainees at Guantanamo,
18 are EU citizens - nine Britons, six Frenchmen, a Dane, a Spaniard and a
Swede. Although the US has not named the six prisoners under the military
order, it is widely known that British citizens Moazzam Begg and Feroz
Abbasi and Australian David Hicks are among them.

Naming the six as "subject" to the military order is only the first step
towards a military commission - it means that the suspects can be taken into
custody by Secretary of Defence Donald Rumsfeld. This, of course, was
already the case with the Guantanamo detainees. But the realisation that
British citizens could face the death penalty in the commissions finally
spurred the British government to act aggressively in its citizens'
interests. Besieged by cross-party political forces, British Prime Minister
Tony Blair personally pressed the issue of the tribunals during his visit to
Washington earlier this month.

Some 200 British parliamentarians signed a motion calling for the
extradition of British suspects for a civilian trial, but that prospect is
unlikely. Instead, negotiations between US officials and British
Attorney-General Peter Goldsmith last week produced assurances from
Washington that the British prisoners would not face the death penalty and
promised some additional legal rights. Benefiting from Britain's assertive
efforts, Australian Justice Minister Chris Ellison won similar rewards for
Australian detainees in separate talks.

Exempting British and Australian suspects from the death penalty invites
accusations of "selective justice", risking further condemnation on an
already sensitive issue. The implication that Washington is offering a
political favour to two of the US's staunchest allies in the war on Iraq
cannot be avoided, and it raises new speculation about the justice served by
the commissions.

Kevin Barry, a retired captain with the US Coast Guard and also a legal
expert at the National Institute of Military Justice (NIMJ), notes that it
is not only crucial that the tribunals meet both American and international
standards of justice - "due process, fundamental fairness, natural justice"
- it is also essential that they are perceived to do so. Recent
developments, he conceded, "have already raised additional concerns
regarding fairness". If the international community fails to see the trials
as independent and impartial, Barry argues, "then the risk is that American
prestige will suffer and the war against terrorism may be hampered, rather
than furthered".

"The Bush administration was in a bind - it risked outrage either way that
it handled the situation," says Joanne Mariner, a FindLaw legal expert. The
Bush administration could not ignore a personal appeal from Tony Blair, but
by giving in to British pressure, it opened itself up to demands from other
nations. "The Bush administration risked outrage from all the countries
whose nationals will not benefit from the improved rules," suggests Mariner.
"Those countries already have good reason to condemn the military commission
trials, given their substandard nature. But the inequality of treatment of
their detainees, compared to British and Australian detainees, should lead
them to protest vigorously to American authorities".

One of the most prominent issues raised about the US military tribunals is
that they fail to meet the standards of due process. Recommendations
regarding the military commissions issued in 2002 by the American Bar
Association's "Task Force on Terrorism" invoke the International Covenant on
Civil and Political Rights to demand that rights given defendants include,
among others, "counsel of one's choice" and the right to "seek habeas corpus
relief in US court". It also says a death sentence must require a unanimous

But all of these rights are explicitly denied by the 2001 military order.
Ken Hurwitz, senior associate at the international justice programme of the
New York-based Lawyers Committee for Human Rights (LCHR), notes that, by
definition, the tribunal is not independent, since it is part of the same
chain of command as the president and cannot be appealed in an independent
court. The defendant must have a military lawyer, "even if he doesn't want
one," says Hurwitz. "They can have a civilian lawyer, but only one who has
security clearance and is an American citizen - and is willing to put up
with many hardships - which tends to undermine counsel of one's choice".
Finally, attorney-client meetings can never be confidential, since they can
be monitored by the Defence Department.

Stephen Jakobi, director of the London-based Fair Trials Abroad (FTA), which
has prominently campaigned on behalf of the European detainees, stresses
that the commissions are in flagrant violation of international law.
Pointing to the "fundamental right" that the defence and prosecution have
equal rights to all the evidence and witnesses before an independent
tribunal, he remarked, "I cannot see where this tribunal conforms".

Military lawyers, adds Hurwitz, are, in many cases, "quite upset that these
stripped down trials are being mistaken for military justice". The US courts
martial system, under the Uniform Code of Military Justice, he notes, is
"actually a system about which military lawyers are rightly quite proud".

Despite what Lord Goldsmith hailed as constructive negotiations, many law
experts maintain that little was actually won for British nationals in
Washington. Reports following negotiations said that Goldsmith had secured
the right for British prisoners to choose their own US civilian lawyers and
use British lawyers as "consultants". But all prisoners have the right to
take on private council, if they have the sufficient funding to do so. It's
not clear if the obligatory military lawyer would still remain present, or
what the status of "consultant" actually means.

The Final Rule states that a defendant cannot dispense with his military
defence lawyer, though he can request a different military defence lawyer
from the one he has been assigned. But the 22 July statement by Goldsmith
says it was agreed that "each detainee will be able to decide to what extent
he wishes the appointed military counsel to participate in the preparation
of his case".

"If this is true, it is in direct conflict with the stated rule," says
Hurwitz. But he adds that a 23 July statement issued by the Department of
Defence makes no reference to this part of the supposed agreement.

Military law expert Barry says that if British "consulting counsel" are
allowed to speak privately with prisoners, it would also mark a significant
departure from the Final Rule, which, "presumably remains applicable to all
other detainees". But this too is not clear, and the vague concessions have
not impressed FTA's Jakobi. "I have seen no indication that the UK has been
successful in fair trials issues in the negotiations so far," he said.

It has been said that one reason Blair was reluctant to push for an
extradition of Moazzam Begg and Feroz Abbasi is that there is not sufficient
evidence to convict them in a civilian court in the UK. An acquittal would
obviously be embarrassing for both the US and the UK. In an American
civilian court - or even a US courts martial - the case against the
defendants would be manifestly weak, suggests Hurwitz. Interrogations took
place without legal counsel present and testimony seen to be extracted under
duress or based on hearsay would likely be thrown out. "That doesn't mean
the evidence wouldn't necessarily be true. It just means that it would be
excluded as improperly obtained or inadequately authenticated," surmises
Hurwitz. "This is a guess - but a good one".

Even without an extradition, however, the decision to exempt British and
Australian prisoners from the death penalty and offer them different rights
can only open a can of worms. Other nations will be sure to demand the same
and the US will have to be held to some kind of account if it denies these
requests. "Notably, international human rights law does not permit countries
to discriminate between citizens and non-citizens with regard to their fair
trial rights," says legal expert Joanne Mariner. "The fact that a defendant
is not a US citizen is no justification for weakening protections for their
internationally recognised rights".

Mariner suggests that Britain's efforts to press the US on these rights is a
good example, saying that nations should also raise the issue with the UN.
But FTA's Jakobi maintains that the Guantanamo Bay situation "is a disaster
for the international community and for the UN".

"The pity of the current situation is that 'might is right'," says Jakobi.
"Who in a real world can call the US to account? If the UK cannot get
worthwhile concessions, who can?"

–  Nyier H Abdou

Nyier H Abdou
Al-Ahram Weekly
New Al-Ahram Building, Ninth Floor
Al-Galaa Street, Cairo

Phone (office): +20-2-770-5168
Fax: +20-2-578-6089
Mobile: +20-10-544-7400
Web site: http://weekly.ahram.org.eg
E-mail: Nyier H Abdou

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